HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU OW104 No. 12/2017 IA No. 1/2017 Smt. Basanti Munshi, age 56 years W/o Sh. Surinder Munshi R/o H. No. 26-F, Exchange Road, Jammu. …..Petitioner(s) Through: Mrs. Radha Sharma, Advocate. Vs 1. Sanjay Kumar alias Sanjay Jandyal, S/o Sh. Prem Nath, R/o H. No. 27-F, Exchange Road, Jammu. 2. Building Operations Controlling Authority, Jammu Municipal Area, Jammu Municipal Corporation, Jammu, through its Administrator/Commissioner. 3. Chief Enforcement Officer, Building Operations Controlling Authority, Jammu Municipal Area, Jammu Municipal Corporation, Jammu. 4. Joint Commissioner, Jammu Municipal Corporation, Jammu. 5. Chief Khilafwarzi Officer, Jammu Municipal Corporation, Jammu. 6. J&K Special Tribunal, Jammu (Appellate Authority under J&K Control of Building Operation Act, 1988). .…. Respondent(s) Through: Mr. S. S. Nanda, Sr. AAG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 14.08.2025 1. The petitioner, through the medium of the present writ petition has challenged order dated 17.11.2016 passed by the J&K Special Tribunal, Jammu whereby an appeal under section 13 of the Control of Building Operation Act, 1988 (hereinafter to be referred as “COBO Act”) filed by the respondent No. 1 against order of demolition dated 22.01.2013 passed by the respondent-Municipal Corporation under section 7(3) of the COBO Act calling upon respondent No. 1 to demolish unauthorized structure raised by him at Exchange Road, Jammu has been disposed of by extending certain directions. Sr. No. 01 2 OW104 No. 12/2017 2. It appears that the respondent-Municipal Corporation issued a notice under section 7(1) of the COBO Act on 27.11.2012 calling upon him to show cause as to why the unauthorized construction raised by him should not be demolished. It appears that respondent No. 1 submitted his reply to the said show cause notice. However, in spite of the reply filed by respondent No. 1, the respondent-Corporation passed an order under section 7(3) of the COBO Act directing respondent No. 1 to demolish the unauthorized construction on spot. 3. The aforesaid demolition order came to be challenged by respondent No. 1 by way of an appeal before the learned J&K Special Tribunal. The petitioner, on the basis of his application came to be impleaded as respondent No. 5 to the said appeal. The learned Tribunal after hearing the parties, disposed of the appeal in terms of the impugned order dated 17.11.2016. While disposing of the appeal, the learned Tribunal issued the following directions: “That the appellant will annex tiles alongside the construction from side of the wall adjacent to Pooja room of respondent No. 5 by fixing water proof titles of reasonable thickness to prevent any absorption of moisture by the wall leading to the seepage towards the house of respondent No. 5. It is also ordered that slope of roof of bath room be not kept from the side of the house of respondent No. 5 to prevent the leakage of water from water tanks and its accumulation or absorption from the respondent No. 5. It is also ordered that water tank on the bath room be shifted from the side of the house of the respondent No. 5 or in alternative place on the roof top of the house of the appellant himself. Since the wall is stated to have been raised by the appellant in his own land which can be used to the extremity only provided the same does not violate the easementary rights of the neighbor as such two bricks from the walls be removed so that partially blocked widow of the respondent No. 5 is freed and the air and lights of the respondent No 5 is restored and in future not obstructed in anyway. Also the wall above the roof of the respondent No. 5 be removed so that his passage to his upper floor is not hampered. 3 OW104 No. 12/2017 This arrangement shall be carried out by the appellant within two months under the supervision of the respondent-JMC in default of which the respondent municipality shall be at liberty to demolish and remove the construction raised by the appellant, as mentioned above. As regard the entrance to the house of the respondents, the parties are having their rival contention as regards the right of ownership and date from which the construction of the gate is raised and this area pertains to adjudication of purely civil rights for which parties are at liberty to approach the Civil Court for the protection of rights if advised in this behalf and this order shall not deemed to confer any advantage on the appellant. However, in the circumstances, it ordered that gate shall not be opened by the appellant towards outside in the land so that the entry of the respondent No. 5 is not hampered and accordingly the appellant shall make and construct the side of installation of the gate in such a way so as to prevent its opening towards outside. With these direction the appeal is disposed off and file shall be consigned to records after due completion.” 4. The petitioner has challenged the impugned order passed by the learned Tribunal on the grounds that the directions passed by the Tribunal are beyond the jurisdiction of the Tribunal. It has been contended that the learned Tribunal has entertained the appeal of respondent No. 1 after expiry of the limitation period and there is no provision for condoning the delay in filing the appeal. It has been further contended that the learned Tribunal has exceeded its jurisdiction as the only option available with the Tribunal was either to uphold the order of demolition or to quash the same. It has been contended that in the alternative, the Tribunal could have compounded the unauthorized portion of the construction but instead of adopting any of these three alternatives, the learned Tribunal has passed the aforesaid quoted directions as if it was called upon to determine the civil rights of the petitioner and respondent No. 1. This according to the petitioner is beyond the scope of jurisdiction of the Tribunal. 4 OW104 No. 12/2017 5. Respondent No. 1 has chosen not to contest this petition and he has been set ex parte. 6. The respondent-Municipal Corporation in its objections to the writ petition has submitted that the impugned order passed by the Tribunal has been implemented on spot. It has been submitted that the learned Tribunal has redressed the grievance that was projected by the petitioner before the Tribunal which was of civil nature and now the writ petition at her instance cannot be maintained. 7. I have heard learned counsel for the parties and perused the record of the case. 8. From a perusal of the record, it is revealed that respondent No. 1, who is owner of the house bearing No. F-27, Mohalla Nariana, Jammu had raised some construction in his old house. According to respondent-Municipal Corporation, the respondent No. 1 has raised fresh construction of bath-room in his aforesaid house adjacent to the wall of the petitioner who is living in neighborhood. It is case of the respondent-Municipal Corporation that the said construction was raised by respondent No. 1 without permission of the Jammu Municipal Corporation, as such, the same is illegal in nature. 9. The stand of respondent No. 1 before the Tribunal was that he has not raised any fresh construction and has only made repairs to the already existing bath-room. However, the respondent- 5 OW104 No. 12/2017 Municipal Corporation did not feel satisfied with the stand of respondent No.1 and, therefore, issued demolition order against respondent No.1 which was impugned by the said respondent before the Tribunal. 10. Instead of deciding the legality and validity of the order of demolition passed by the respondent-Municipal Corporation which was the mandate of the Tribunal in terms of Section 13 of the COBO Act, the learned Tribunal by passing the impugned order has tried to amicably settle the dispute between the petitioner and respondent No. 1. 11. The raising of the illegal construction cannot be a matter of the settlement between two neighbors. The only way, the matter could have been settled was to compound the violations if the same fell within the parameters permissible under the rules framed under COBO Act but in no case, the learned Tribunal could have avoided to decide the legality of the order of demolition and proceeded to give a decent burial to the issue of illegal construction which was brought before the Tribunal for its adjudication. The learned Tribunal also did not advert to the contention of the respondent- Municipal Corporation with regard to the maintainability of the appeal on the grounds of limitation. 12. The learned Tribunal was not deciding a civil suit in which the petitioner and respondent No. 1 were locked in adjudication of their civil rights but it was a case in which the learned Tribunal was obliged to adjudicate upon the legality and 6 OW104 No. 12/2017 validity of the demolition order passed by the respondent-Municipal Corporation. By disposing of the appeal in terms of the impugned order the learned Tribunal has avoided to decide the issue which it was obliged to decide under the provisions of COBO Act and instead, it travelled beyond its scope of jurisdiction and proceeded to pass directions unknown to powers vested in it in terms of COBO Act. 13. It is a settled law that a Statutory Tribunal cannot travel beyond the powers vested in it in terms of the statute creating the Tribunal. In the instant case, the directions passed by the learned Tribunal while disposing of the appeal in terms of the impugned order, are, clearly beyond the scope and power of the Tribunal as conferred on it under the COBO Act. The same, therefore, cannot be sustained in law. 14. For the foregoing reasons, the instant writ petition is allowed and the impugned order passed by the Tribunal is set aside. The case is remanded to the Tribunal with a direction to decide the legality and validity of the demolition order passed by the Municipal Corporation, of course, after hearing the parties afresh. 15. Disposed of, accordingly. (SANJAY DHAR) JUDGE JAMMU 14.08.2025 Shivalee Whether the order is speaking: Yes Whether the order is reportable: No Shivalee Khajuria 2025.08.19 10:31 I attest to the accuracy and integrity of this document Jammu